SECRECY & GOVERNMENT BULLETIN

Issue Number 41

November 1994

After voting last summer to keep all intelligence budget data
classified, Congress has again published new details on
intelligence spending by mistake. In an unintentional public
service, the House Defense Appropriations Subcommittee disclosed
the size of the 1995 budget request for the CIA, for the Defense
Department's portion of the National Foreign Intelligence Program
(NFIP), and for tactical intelligence programs.

No official proposal to disclose the intelligence budget at this
level of
detail has ever been seriously considered. The most ambitious
proposal has
been merely to acknowledge the total size of the intelligence
budget, a move
that Congress rejected in July under pressure from the White House
and the CIA
(S&GB 38).

The new disclosures (pdf) are contained in Department of Defense
Appropriations for 1995, part 3, recently published by the House
Appropriations Committee. They include the following
revelations:

The total Defense Department budget request for the National
Foreign Intellience Program was $16.3 billion. (page 784). This
does not include a few hundred million additional dollars for NFIP
programs within the State Department, the Treasury Department,
DOE,
the FBI, and the Drug Enforcement Agency.

The budget request for the Central Intelligence Agency, which
is contained within the DOD NFIP budget, was $3.1 billion. (page
784, 754-5).

The 1995 budget request for Tactical Intelligence and Related
Activities (TIARA), comprised of hundreds of programs that provide
intelligence support to the U.S. military, totalled $10.4 billion.
(page 717).

The overall Defense Department request for C3I (Command,
Control, Communications and Intelligence) programs was $50.6
billion (page 777), which included $14.9 billion for C3 programs
(page 726), $3.2 billion for security activities (page 736), and
an
estimated $5 billion for information technology programs, as well
as the NFIP and TIARA budget requests.

Similar but less complete data for FY 1994 were also published by
Congress
earlier this year (S&GB 35).

The Congressional policy of declaring the intelligence budget
classified but then publishing it anyway-- "let's not classify
and
say we did"-- is obviously due to clerical error, not some latent
democratic impulse. The implementation of the government's
convoluted secrecy rules is a mind-numbing task, and when it comes
to concealing the size of the intelligence budget the censor
cannot
even tell himself that national security depends on getting it
right. Mistakes are bound to occur on a regular basis.

But this kind of accidental disclosure is also the natural
resolution of the various political tensions that are in effect
here. Congress has repeatedly affirmed the need to declassify the
intelligence budget total, but only in non-binding resolutions.
Faced with a binding proposal to require declassification,
Congress
voted it down. The clear implication is that while
declassification is the right thing to do, Congress is unwilling
or
institutionally unable to take responsibility for making it
happen.

"Accidental" disclosure has the great advantage that it does
not require anyone to exercise leadership or to take
responsibility. As a result, it has now become the preferred
policy, particularly since classification reform is not working.
If current trends are taken to the limit, everything may
eventually
be classified-- but nothing will be secret.

The Advisory Committee on Human Radiation Experiments,
chartered by the White House to assess the conduct of radiation
experimentation from 1944 to 1974, released its interim report on
October 21. Preliminary findings included the disclosure that the
scope of the radiation experiments was much greater than
previously
believed.

Despite generally good responses from most government
agencies, the Committee reported profound difficulty in assembling
a complete record of the experiments, noting that the needed
documents were widely scattered and often classified. In some
cases, such as the 1949 Green Run intentional release of
radioactivity, the government is refusing to declassify relevant
information. And some important record collections, like those of
the Atomic Energy Commission's Intelligence Division and the CIA's
MKULTRA behavior modification program, have been preemptively
destroyed.

But while the Committee's admirable efforts to illuminate the
scope of these past experiments are important and necessary, the
Committee itself has posed an even more important question: Could
government experiments involving abuses similar to those in the
past be conducted today?

Though it is improbable that government agencies would target
individuals for secret experiments in today's leak-prone,
litigious
environment, it is fair to ask if there are oversight mechanisms
in
place to protect the public against secret government activities
that could have collateral public health impacts.

Thus the Committee asks, "How would the historical releases
[of radioactivity] be conducted today? Would environmental impact
statements be required? Would there be public notice? Could all
or portions of the review process be kept secret?" (p.18)

This is an electrifying line of inquiry that goes straight to
the core of the problem of government secrecy. If pursued
diligently, it would help to expose the practical boundaries of
government accountability.

To determine whether hazardous experiments could be secretly
conducted today, the Advisory Committee might ask the following
sorts of questions:

How easy is it for government agencies to withhold basic
programmatic information from Congress? Consider, for example, 10
U.S. Code 119e, which legally authorizes the Secretary of Defense
to withhold notification of certain special access programs from
all but eight members of Congress. Furthermore, how well does
Congress oversee secret programs even when it is notified about
them? Consider the case of the secret NRO headquarters building.

How easy is it for individual program managers to withhold
basic programmatic information from senior officials within their
own agency? Consider, for example, the case of the cancelled
multi-billion dollar A-12 naval aircraft program, or the October
1993 DOE Inspector General report (DOE/IG-0335) which found that
"senior officials may not be aware of all special access programs
that are being worked on under their cognizance." How easy is it
to evade even the minimal special access program reporting
requirements by simply not calling your program a special access
program?

How prevalent today is the use of classification authority to
withhold environmental impact data from the public? Consider, for
example, 32 C.F.R. 989.25 which would allow the Air Force, like
other agencies, to "keep the entire [Environmental Impact
Statement] process classified." Consider also the classified
preliminary assessment in 1990 of a possible nuclear rocket flight
test over the south Pacific. (According to a secret Sandia
National Lab study, "The probability of impacting New Zealand,
given a failure, is 4.3 x 10-4.")

Why is the Advisory Committee conducting its investigation
today instead of ten, twenty, or thirty years ago? Why did the
government fail to address these issues a long time ago, when
answers would have been much easier to find? Have institutional
checks and balances collapsed to the point that public safety now
depends primarily on the integrity of individuals like Hazel
O'Leary?

The Advisory Committee aims to complete its work next April
with the issuance of a final report.

The F-117A Stealth Fighter is often invoked as an example of
a highly classified program that "worked." So it is doubly
remarkable that the former head of Lockheed Skunk Works, which
conceived and built the Stealth Fighter, views the government's
secrecy and security policies as wasteful and often unfounded.

"A classified program increases a manufacturer's costs up to
25 percent," writes Ben R. Rich in his fascinating new book Skunk
Works (p. 333). "We need to safeguard technologies and weapons
systems, but we don't need to hide behind secrecy as a means to
cover up mistakes or to block oversight by outside agencies."

"Once a program is classified secret it takes an act of God to
declassify it. We should limit its [i.e. classification's] use
and
be tough about periodic declassification reviews. What was secret
in 1964 often is probably not even worth knowing about in 1994,"
says Rich.

"I would strongly advocate reviews every two years of existing
black programs either to declassify them or eliminate them
entirely. We could save millions in the process."

"Secrecy classifications are not inconsequential but are a
burden to all and horrendously expensive and time-consuming. If
necessarily in the national interest, these expenses and
inconveniences are worthwhile. But we ought to make damned sure
that the secrecy stamp is absolutely appropriate before sealing up
an operation inside the security cocoon. Sunset laws on security
are an important first step toward real dollar saving," writes
Rich
(page 334).

Also in Skunk Works, Ben Rich recalls the first patent that he
earned as a young engineer.

It was "for designing a Nichrome wire to wrap around and
electrically heat the urine-elimination tube used on Navy patrol
planes. Crewmen complained that on freezing winter days their
penises were sticking painfully to the metal funnel. My design
solved their problem and I'm sure made me their unknown hero."

The practice of classifying certain new inventions was
institutionalized in the Invention Secrecy Act of 1951. This
vintage cold war legislation is distinguished by the fact that,
like the Atomic Energy Act, it allows government to restrict the
speech of private citizens in ways that appear to conflict with
the
First Amendment. Specifically, the government can prohibit an
inventor who applies for a patent from marketing or even
disclosing
his or her invention.

More than forty years later, the Invention Secrecy Act is
alive and well. In recent years, hundreds of new secrecy orders
have been imposed on private citizens each year, along with many
more that were assigned to government contractors. As of mid-
1993,
a total of 6,033 secrecy orders were in effect. (Ten years
earlier, the number was 3,900.)

Last month the U.S. Army declassified the Patent Security
Category Review List which defines the technology development
areas
that may be restricted under the Invention Secrecy Act. The
document had previously been classified Confidential and had never
been publicly released. It was declassified in response to a FOIA
request from Michael Ravnitzky, a private citizen in Minnesota.

About 3% of all patent applications that are filed typically
fall into one of the areas identified in the Category Review List,
and these are forwarded to the military services for review. Some
form of secrecy order, ranging from limited export control to
outright classification, is imposed on about five to ten percent
of
the applications that are reviewed by the military.

Ravnitzky said that he sought release of the classified Review
List "so that inventors can be aware of which technologies could
be
subject to a patent secrecy order."

A copy of the Category Review List is available from S&GB for
$2 to cover copying and postage.

As part of Hazel O'Leary's declared policy of "zero tolerance
for reprisals against whistleblowers," DOE has released for
comment
a description of five initiatives to protect whistleblowers,
including measures to ensure that security clearance procedures
are
not abused to punish whistleblowers. Available from S&GB.

Presidential Decision Directive 29, signed by the President on
September 16, establishes the Security Policy Board, an
interagency
body that is supposed to coordinate security policies for
protecting information, facilities, and people. The directive is
remarkable mainly for its lack of specific policy content. A copy
of a fact sheet containing the text of PDD 29 is available from
S&GB.

Secrecy and Government Bulletin is written by Steven
Aftergood and published by the Federation of American Scientists,
307 Massachusetts Avenue N.E., Washington, DC 20002. For
more information call (202)675-1012 or send email to
[email protected]